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Vogel v. OM ABS, Inc.

United States District Court, C.D. California

January 30, 2014

Martin Vogel, Plaintiff,
OM ABS, INC. dba Carrows; TSL Development Inc. Defendants.


RONALD S.W. LEW, Senior District Judge.

Currently before the Court is Plaintiff Martin Vogel's ("Plaintiff") Motion to Strike Affirmative Defenses [28]. The Court, having reviewed all papers submitted pertaining to this Motion, NOW FINDS AND RULES AS FOLLOWS:

The Court hereby GRANTS in part and DENIES in part Plaintiff's Motion to Strike Affirmative Defenses.


Plaintiff is a T-3 paraplegic who is "physically disabled." First Amended Complaint ("FAC") ¶ 8. Defendant OM ABS, Inc., doing business as Carrows, owns operates, and leases a restaurant (the "Restaurant"). Id. at ¶ 7. Plaintiff claims that Defendants OM ABS, Inc. and TSL Development, Inc. ("Defendants") violated the Americans with Disabilities Act ("ADA") and related California state laws because the Restaurant failed to provide adequate access for the disabled. Specifically, Plaintiff claims that: (1) the Restaurant has incorrect tow away signage, (2) one of the disabled parking spaces lacks signage, (3) there are no spaces designated as being van accessible, (4) there is no International Symbol of Accessibility mounted at the Restaurant's entrance that would indicate to Plaintiff that the Restaurant is intended to be accessible to him, (5) the toilet tissue dispenser is mounted too far from the back wall and too far from the front of the water closet, (6) the pipes beneath the lavatories are not wrapped, and (7) the paper towel dispenser is mounted too high, making it difficult for Plaintiff to reach and use. Id. at 10. Plaintiff seeks, inter alia, injunctive and declaratory relief, statutory damages, and attorneys' fees and costs.

Plaintiff brought suit on March 13, 2013, against Defendants OM ABS, LLC and TSL Development Inc. [1].

On August 9, 2013, Defendant OM ABS, LLC was terminated from this Action, and Defendant OM ABS, Inc. was added as a defendant [11]. Plaintiff filed a First Amended Complaint on August 9, 2013 against Defendants OM ABS, Inc. and TSL Development, Inc. [11].

Defendant TSL Development, Inc. ("Defendant TSL") filed its answer and pled twenty-five affirmative defenses[1] to Plaintiff's First Amended Complaint on December 3, 2013 [21].

On December 23, 2013, Plaintiff filed the present Motion to Strike Defendant TSL's Affirmative Defenses [28]. On January 8, 2014, Defendant TSL filed a Notice of Non-Opposition to Plaintiff's Motion to Strike [29]. This matter was taken under submission on January 23, 2014 [30].


Under Federal Rule of Civil Procedure 12(f), the Court may, by motion or on its own initiative, strike "an insufficient defense or any redundant, immaterial, impertinent or scandalous" matters from the pleadings. The purpose of Rule 12(f) is "to avoid the expenditure of time and money that must arise from litigating spurious issues by disposing of those issues prior to trial." Whittlestone, Inc. v. Handi-Craft Co. , 618 F.3d 970, 973 (9th Cir. 2010) (quoting Fantasy, Inc. v. Fogerty , 984 F.2d 1524, 1527 (9th Cir. 1993)).

The grounds for a motion to strike must appear on the face of the pleading under attack. See SEC v. Sands , 902 F.Supp. 1149, 1165 (C.D. Cal. 1995). In addition, the Court must view the pleading under attack in the light more favorable to the pleader when ruling upon a motion to strike. In re, Inc. Sec. Litig , 114 F.Supp.2d 955, 965 (C.D. Cal. 2000) (citing California v. United States , 512 F.Supp. 36, 39 (N.D. Cal. 1981)). As a rule, motions to strike are regarded with disfavor because striking is such a drastic remedy; as a result, such motions are infrequently granted. Freeman v. ABC Legal Servs., Inc. , 877 F.Supp.2d 919, 923 (N.D. Cal. 2012). If a claim is stricken, leave to amend should be freely given when doing so would not cause prejudice to the opposing party. Vogel v. Huntington Oaks Delaware Partners, LLC, 291 F.R.D. 438, 440 (C.D. Cal. 2013) (citing Wyshak v. City Nat'l Bank , 607 F.2d 824, 826 (9th Cir. 1979)).


As a preliminary matter, Plaintiff asks the Court to apply the pleading standard announced in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007) and Ashcroft v. Iqbal , 556 U.S. 662 (2009) to his Motion to Strike Affirmative Defenses, which would require the pleading of facts sufficient to state a facially plausible affirmative defense. Mot. 2:17-21. However, Plaintiff has not provided any binding authority holding that the Twombly/Iqbal standard applies to affirmative defenses. District courts within the Ninth Circuit are split on the issue, and the Ninth Circuit has yet to address it. See J & J Sports Productions, Inc. v. Scace, No. 10cv2496-WQH-CAB, 2011 WL 2132723, at *1 (S.D. Cal. May 27, 2011). Without binding authority expanding the scope of Twombly/Iqbal, the Court finds that the traditional standard of fair notice to the plaintiff is still applicable to the pleading of affirmative ...

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